This diary is intended – with limited technical detail, so as not to lose everyone in the weeds – to be a guidepost for deciphering this week’s (scheduled) public discussions, and reporting about those discussions, in the Senate – beginning today, Tuesday, January 25th – about how that federal legislative body operates, or should operate. [The 112th Senate met for the first time on January 5, 2011, and then "recessed" until 10 a.m. today - which, under its Standing Rules and precedents, continues the "legislative day" of the Senate's first session into today's session, and potentially future sessions, until the Senate formally "adjourns." As a related aside, I question whether "Jefferson's Manual" - guidance for a legislative body without any of its own rules - likewise provides that multiple "recessed" calendar day sessions of the Senate, separated by weeks, count as one "legislative day."]

Included below are a number of facts, about existing Senate rules and practices, which starkly contradict the conventional wisdom generated by reflexively-partisan Senators themselves – as uncritically accepted and repeated by the national media – about what existing Senate rules do and don’t “require.” As most of us recognize, members of the American media today who have relatively easy access to Senators, and to other powerful national figures, rarely meaningfully challenge those privileged to hold such power. That evidently goes double when simplistic, widespread partisan myths have come to predominate and obscure the inconvenient, unspoken truths about the non-partisan institution in which United States Senators serve. . . . Read the rest of this entry →

This diary covers a lot of territory at less than typical ‘blogging speed’ (I doubt that it can be comfortably read in one sitting), in order to provide more context and perspective in one place than is usually provided when its subject matter is discussed in the blogosphere. Though there are related tangents discussed, the core of the diary focuses on the U.S. Congress – the first among equals of our three branches of government, which is now in transition from the 111th Congress to the 112th – and the ways in which the Senate and House today mostly fail, on matters of the greatest consequence to the nation and its people, to operate as designed and intended.

As it happens, just two days ago, on Friday, December 10, Senator Bernie Sanders of Vermont provided a vivid example of the value of public debate in Congress – debate that fosters a better understanding of national policy choices and an informed electorate – which is something that this diary seeks to highlight and extol. [To read the floor remarks of Senator Sanders Friday, click on "Senate" next to December 10 here, then choose Item 12 ("The Economy") in the subsequent list - you will likely need to go back to the first page and repeat that process a few times as you read through his remarks, because search results on that site time out.]

Senator Sanders so far has in fact done nothing to materially delay (“filibuster”) the business of the Senate, with his eight hours of debate against a profound tax policy change that has bypassed all committees in Congress, and would be unamendable in the Senate – nothing, that is, beyond extending the typical early adjournment of the Senate on Fridays, and thus imposing to some degree on Senate staff and on the Presiding Officer(s). Most of his colleagues, however, had already returned home by early Friday, as usual, having been told Thursday evening that no further votes would be held in the Senate until Monday afternoon. Nevertheless, as I hope this diary makes clear toward its close, what Senator Sanders did on Friday – by actually speaking at passionate length on the floor – was more in the nature of a genuine “filibuster” than anything we’ve seen from the minority Republicans throughout the so-called “record” number of “filibusters” in the Senate under recent Democratic majorities.

Time will soon tell whether Senator Sanders plans to transform his Friday speech into extended public debate and objections which would actually meaningfully impede passage of the tax policy changes he opposes. So far, Sanders – and every other Senator – has already waived the reading of the substitute amendment/deal [SA 4753 to H.R. 4853], and declined to exercise opportunities to delay a final vote on the measure. For example, Sanders gave his consent to waive the rules of regular order for the consideration of legislation, and didn’t object to Harry Reid’s unanimous consent request to immediately accept the motion to proceed to the measure, without debate, last week. As a result, the tax deal was officially placed before the Senate for its immediate consideration as of Thursday, December 9, 2010.

Public objections and further debate from Sanders that actually impede the intended speedy passage of the tax measure through the Senate would indeed amount to a genuine “filibuster,” similar to what Chris Dodd practiced against the FISA Amendments Act in 2008. Sanders also has the looming close of the 111th Congress in his corner to add weight to his delaying tactics, if he’s serious about preventing or delaying passage of the deal (thereby incurring the wrath of many powerful people in and out of the White House). If anyone’s interested in more detail, I can elaborate in comments, and try to answer questions, about what Senator Sanders procedurally did Friday, with his hours of impassioned speaking on the Senate floor against another Obama-driven backroom deal (aka “TARP II” in future, perhaps); what Senate Democrats (specifically, Harry Reid, Max Baucus, Joseph I. Lieberman, John D. Rockefeller IV, Byron L. Dorgan, John F. Kerry, Sheldon Whitehouse, Mark L. Pryor, Robert P. Casey, Jr., Richard J. Durbin, Mark R. Warner, Jeanne Shaheen, Ben Nelson, Evan Bayh, Christopher J. Dodd, Kent Conrad, Jim Webb, Bill Nelson, and Amy Klobuchar) did to preempt the Sanders “filibuster” before it even began (as the Democratic Senate under Majority Leader Reid has done with every threatened filibuster by a minority since 2006, thereby voluntarily imposing supermajority rule on the Senate despite the absence of actual filibusters); and what Sanders may now easily do under Rule 22 (that is, cloture – since those 18-19 Democrats yesterday voluntarily invoked that supermajority rule) to at least significantly delay a final vote on passage of the tax cut deal, beginning at 3 p.m. Monday, when the cloture motion will be voted on by the Senate (assuming that 60 Senators vote to invoke cloture to “stop” the already-ended or suspended Sanders speech, as President Obama and Majority Leader Reid are counting on them to do).

Broadening the discussion of the latest specific Senate action to the more general habits of Congress today, I contend, and try to comprehensively make the case below that, if Americans value liberty and publicly-accountable self-government, we cannot and should not continue to countenance Members of Congress who conceal their actions (or failures to act) in federal office from public scrutiny, as most members of the national political media today help most legislators to do by basically ignoring their daily activities – whether by adopting the media’s obsessive focus on an over-hyped, self-aggrandizing presidency, or otherwise leaving our federal representatives alone to work (or to secretly delegate to others) in the dark. There even seem to be some promising developments from the inside to report that would help us to change the present course of our national legislature: The leadership of the new Republican House, hard as it may be to believe, just might mean what it says about starting to bring the light of day into the backrooms of Congress.

To provide documentation on the subject for both houses of Congress, I include separate summarized examples below of how the House and Senate operate today (including links to detailed explanations I’ve made in the past about how particular pieces of legislation were handled), and focus toward the end on key facts about debate and filibustering in the Senate that are rarely explained by legislators of either Party, and are obviously widely misunderstood (or ignored) by both the public and national reporters based in Washington.

Here’s a statement of what I consider to be foundational truths – truths actively suppressed and disdained by promoters of an undemocratic status quo – about our nation’s system of government:

The importance of Congress is its capacity for diversity and openness (relative to the executive branch) – the opportunity it gives to express different sentiments, opinions, and values. It is a disorderly operation and disappointing to those who want firm direction and quick action. But this free play of ideas, as well as the freedom not to move until the time is right, is essential to democratic government. What is needed from Congress is the daily grind of overseeing administration policies, passing judgment on them, and behaving with confidence as a coequal branch. This takes courage and an understanding of constitutional responsibilities.

[...]

Congress must be willing to participate actively in questions of national policy, challenging the President and contesting his actions. It cannot be viewed as quarrelsome behavior for Congress to assess presidential action independently. Issues need the thorough explorations and ventilation that only Congress can provide.

[...]

Robert H. Jackson, whose entire career with the federal government lay outside the legislative branch, serving first as Attorney General and later as Associate Justice of the Supreme Court, urged us to hold fast to essentials: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

- Louis Fisher in the concluding chapter and paragraph of his 1985 book Constitutional Conflicts Between Congress and the President

In other words, “parliamentary deliberation” or public debate in Congress, however “disorderly” or slow, is not some pointless form of “litigating,” or “relitigating” – as President Obama dismissively termed it early in November [President Barack Obama, in his news conference said, "I think we'd be misreading the election if we thought that the American people want to see us for the next two years relitigate arguments that we had over the last two years"] – but rather a core, indispensable function of the legislative body of a self-governing, democratic Republic. An indispensable function of democratic, good government that Obama, and other short-sighted, or self-serving, proponents of a presidency that’s both Chief Executive and Chief Backroom Legislator, evidently fail to appreciate or to publicly acknowledge.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

- Montesquieu, The Spirit of Laws, 1748

That’s to say nothing of the impossible workload that such a merging of power purports to impose on one human being, who would have to be superhuman to attempt, even in slap-dash fashion, to singlehandedly fulfill the roles of two different branches of government, even with the assistance of the sprawling resources that the Executive Branch now has at its disposal.

Yet the last couple of weeks in Washington have once again displayed for all to see the voluntary abdication of the core legislative role of Congress to the President by current (majority and minority) Party leadership (with unquestioning acceptance by the Washington media, and apparently also by most members of the Congressional rank and file). Public legislating has been openly sacrificed, and replaced by private CEO-style “negotiations” conducted by a handful of powerful Congressional actors bargaining behind closed doors in the White House (and over the phone) with the President, off the public record.

The result of that private deal-making is now presented to Congress to back in to the legislative process, without amendment or, absent Bernie Sanders Friday, apparently any debate of consequence by our federal “representatives.” That’s a hell of a way for a self-governing nation of 300 million people to operate, but President Obama (enabled by powerful majority Party lackeys like Reid and Durbin), for one, and minority Senate Republicans, for another, presumably would like nothing more than to see such private deal-making repeated again and again over the next two years, despite, or because of, the fact that neither the policy positions of the President or Senate Republican leadership seem to be positions favored today by a majority of the American people.

The President, backed by his minions in Congress, would no doubt hurry to tell us that “he knows best” about what’s good for us, and is doing us a favor by ignoring majority popular opinion, as he so deceitfully did during the health care bill deal-making – which, without contradiction, he now refers back to this way (as perceptively noted here this month by ‘janeeyresick’):

“SoI pass a signature piece of legislation where we finally get health care for all Americans…” - President Barack Obama, December, 2010

janeeyresick goes on to precisely describe the Democratic Party’s (ongoing) abdication of its members’ Congressional responsibilities:

Like the White House killing off the Public Option in early “negotiations” with the industry but keeping that little fact to themselves even while the President still pretended to publicly support it.

[...]

Of course, we know in retrospect that someone had to kill off in public what the president had previously strangled in private. [...] The death of the public option was essentially a Democratic production of Murder on the Orient Express with one essential difference. In Murder on the Orient Express all the miscreants act in concert so that no one person can be labeled the culprit and it would be impossible to determine which participant delivered the fatal blow. In the Murder of the Public Option, the fatal blow had been personally delivered by the President/White House before any other passengers entered the compartment. Nice of them to collude in the cover-up, though.

The “Republicans” I refer to in the diary’s title are the leadership and caucus of the new Republican-majority House in next year’s Congress and, to a lesser extent, next year’s larger Republican minority in the Senate, which may also have an opportunity to positively impact the way in which that legislative body’s public debating and amending functions have been all but discarded. Incumbent majority Democrats, of course, had their chance to meaningfully, honestly reform the practices of Congress over the last 2-4 years, and evidently couldn’t be bothered to lift a finger in that regard, except to make things worse (some genuine, meaningful earmark-transparency reform in 2007 evidently excepted):

POGO [the Project on Government Oversight] is one of Washington’s most productive and respected good-government groups, and [Danielle] Brian, who has been its executive director since 1993, can look back and take pride in a number of victories for accountability in areas such as cutting wasteful defense contracts, exposing oil and gas industry fraud, and increasing nuclear security.

But one thing she’s not celebrating is the pathetic state of congressional oversight.

“I’ve been doing this for 20 years, and it’s never been worse,” she says. “I know that’s actually shocking for progressives to hear because their people are in power and they thought that was going to make all the difference.”

And yetoversight is even more anemic now than when Republicans controlled Congress and the White House, she says.

It’s not so much a question of partisanship, she says, it’s a matter of Congress having forgotten its role.

“I really think that what you have now is a complete break from the historical perception within Congress itself that first and foremost it is a separate branch of government,” Brian says.

Back in the day, “very powerful Democratic chairmen would have no trouble going after Democratic or Republican administration wrongdoing,” she says. “And, at least as importantly, they were aggressive at preserving their power in the Congress to access information from the Executive branch.”

But now, she says, “They’ve become so deferential — both Democrats and Republicans — to the Executive branch, especially when it comes to national security, it’s appalling.”

Danielle Brian’s experienced assessment of the recent Democratic Congresses, with regard to their (lack of) oversight of the Executive Branch (even when the presidency is held by a Republican), is mirrored in the way that the 111th, Democratic Congress did the legislative bidding of this Democratic President in his first year in office (topping even the Republican Congress during six years of the George W. Bush administration), as an analysis conducted by Congressional Quarterly revealed:

January 13, 2010 — Rarely does a Congressional Quarterly studyattract public attention like yesterday’s annual report on “Presidential Success” in Congress. But this year’s report offered a stunning finding: In 2009, President Obama racked up the highest presidential support score in Congress since CQ inaugurated its study in 1953. In the Senate, legislators agreed with the president 96.7 percent of the time Obama took a position; in the House, 94.4 percent of the time.

[...] Although senators cast 397 roll call votes in 2009, the president (or his top staff) took a clear position on only 79 Senate roll call votes. Victorious on 78 of them, Obama achieved a success rate of 98.7% in the Senate. His House average (winning on 68 of the 72 votes he took a position on) reached 94.4%, leveling off to the reported 96.7% overall success rate. Click here to see Presidential Success graph

Meantime, desultory floor speeches – often amounting to little more than Party finger-pointing exercises (especially in the House) by members of the House and Senate, which frequently serve only to mark time while the backroom deal-making between Party leaders generates the product of Congress – have these days by and large supplanted the deliberative, democratic public debate for which the House and Senate Chambers, and the public committee rooms of Congress – the “sanctuaries” of the ideas and will of the representatives of the people of our self-governing nation – were designed and intended to be used.

If we hope to retain and improve our representative democracy, and with it the ability of the nation’s people to self-govern and practice good government, in lieu of allowing the will of one man to dictate national policy, it is imperative that observers and Congressional incumbents alike appreciate the stark differences between one branch’s hierarchical, top-down executive role, and the other branch’s deliberative, egalitarian legislative role. Sacrificing the slow, but irreplaceable, working of the will of the federal legislature’s elected representatives, to the desires of one executive’s often impatient and vain will to act, helps bring the sorry results that we see all around us today in America (and those unseen by most Americans, yet harshly felt by millions of foreign citizens as a direct result of violent or careless American government actions taken abroad with impunity in the absence of domestic or international accountability).

The new leadership team of next year’s Republican House is at least hinting that they genuinely intend (beyond mere partisan point-scoring against the current Democratic president) to start to reverse the long trend in the House of dangerously centralizing most of the power of its members in a partisan Speaker – as this promising report indicates:

Thursday, November 18, 2010
By Jack Torry and Jonathan Riskind

[...] In particular, [Speaker-elect John Boehner] has pledged to empower lawmakers to have a greater say in how bills are written, rather than having most measures drafted in the speaker’s office, a style favored by Pelosi and the two Republican speakers before her: Dennis Hastert of Illinois and Newt Gingrich of Georgia.

In a speech to his colleagues yesterday, Boehner said “the job of the next speaker is to work to restore the institution. Restore it to being the people’s House.

“This is the dawn of a new majority,” Boehner said. “One I believe will be humbler, wiser and more focused than its predecessors on the priorities of the people.”

[...]

A Republican lobbyist in Washington who spoke only on the condition that he not be identified said that Boehner “is completely serious about opening up the House and letting the House work its will.”

“I don’t think he’s naive about what that means,” the lobbyist said. “It may produce some amendments that the majority loses. This is going to cause some chaos on the House floor and cause members to work harder, but [Boehner] genuinely believes that it will let off some steam and make the atmosphere of the place not so poisonous.“

[...] For Mr. Issa’s [House Oversight] committee, which can delve into any corner of the government, the more policy-driven crusade is purposely devised to steer clear of the reputation for hectoring and henpecking that Congressional Republicans earned during the Clinton administration when they issued more than 1,000 subpoenas and repeatedly tied White House lawyers into knots, ultimately impeaching the president.

To that end, Mr. Issa has sought to play down the unfettered power to compel testimony and force the production of documents through subpoenas that he will gain with his new post in January. Instead, he has put greater emphasis in recent weeks on pursuing legislation to grant subpoena power to the inspectors general in dozens of federal agencies, internal watchdogs who he believes are even better-positioned to hunt for waste.

The current oversight committee chairman, Representative Edolphus Towns, Democrat of New York, and Mr. Issa jointly supported a bill authorizing subpoena powers for inspectors general, but Democratic leaders did not make it a priority.

[...]

But there is still likely to be a blizzard of investigations compared with the last two years, during which Mr. Issa repeatedly accused Congressional Democrats of giving the Obama administration a free pass.

“I think one of the things that Congress has not done a very good job of over the last 15 years is real oversight. And I’m not talking about gotcha oversight. I’m talking about rock-solid oversight of the Executive Branch which is a Constitutional responsibility of the Congress.”

The referenced centralization of power in the Speaker (which is a major contributor to statistics like the House having passed “300 bills” in this term of Congress) has by now made a mockery of legislative debate in the House, although that reality is rarely noted by the media or Party partisans – unsurprisingly, perhaps, given that our media and Congressional cultures both seem to prefer to fawn over the presidency (whose incumbent is now treated like royalty by many), or otherwise appear overawed by and addicted to the aura of power around the President. The voluntary (if essentially Party-bribed) ceding of power by majority House members to the Speaker has in turn effectively ceded the power of the House, now wielded by the Speaker alone, to the President whenever his Party has a House majority (thereby, however surreptitiously it’s carried into effect, vesting both legislative andexecutive power in one man).

[...] A recent paper, published before the Nov. 2, 2010 election by former Oklahoma Republican Congressman Ernest Istook, Michael G. Franc, and Matthew Spalding, Ph.D., for the conservative Heritage Foundation, recommends a set of reforms “of both parties’ internal caucus rules in order to reverse the decades-long trend whereby House leaders have acquired enormous power at the expense of rank-and-file members.”

While not going so far as the early 20th Century rebellion against Speaker Joseph ‘Czar’ Cannon, who was known for his nearly dictatorial rule, the argument they are making has been out there at least since the mid-1970s… [...]

[...]

“This requires,” they suggest, “rules and processes that best enable rank-and-file Members to participate fully in all the roles, most prominently legislative and oversight, that the House is asked to fulfill” by the Constitution.

[...]

Istook, Franc, and Spaulding recommend four reforms in particular which, while potentially popular with the rank-and-file because they would expand their voice and give them a certain degree of increased power, would dilute the authority of the elected leadership and committee chairmen, thus making them difficult to enact…

[...]

It is almost certain, say sources on Capitol Hill, that Boehner means business when he says the House will, under his leadership, be run in a way much different than that of his immediate predecessor. The reforms being proposed in the Heritage paper may represent one or two bridges too far at the moment but more decentralization is clearly coming.

The same dangerous centralizing of power in Party leadership hands is also present to a significant degree in the private, weekly, Party-segregated caucuses in the Senate, although without Senate Standing Rules (as in the House) to help enforce such abject subservience by Senators to their Party leaders (even when that leadership has veered wildly away from the purported agenda of their Party platform). [Anyone covering Congress ought to be wondering, and asking: If rank and file members want more control over the legislative agenda of the House or Senate, as self-directed legislators, why does every single member agree (unanimously consent) to "deem expired" (daily in the Senate) the"Morning Hour" (a part of the legislative day when no debate can block a motion to proceed to the consideration of a piece of legislation offered by a Senator), and to dispense with (weekly in the House) the "Calendar Wednesday" rule (which otherwise allows committees to present legislation for consideration by the House, without the approval of the House Rules Committee or the Speaker)??]

Much of the unnecessary damage that our government causes at home and abroad is courtesy of the distaste that both national political Parties, and their members in and out of Congress, evidently feel for the erratic course and hard slog of public legislating and oversight, which the Constitution’s separation of powers mandated, in large part, to protect the individual liberty of Americans (and other persons) from federal government overreach and the always-tempting arbitrary tyranny of the powerful.

Great evils often result from hasty legislation; rarely from the delay which follows full discussion and deliberation. In my humble judgment, the historic Senate – preserving the unrestricted right of amendment and of debate, maintaining intact the time-honored parliamentary methods and amenities which unfailingly secure action after deliberation – possesses in our scheme of government a value which can not be measured by words.

If the authors of our Constitution had been as overawed by, and insulated from abuses of, government power as today’s federal government elite clearly are, “separated federal power” would probably have been the last thing on their minds. After all, “National Security” – in which personal liberty, if considered at all, is derided as a “suicide pact” – is seemingly far more efficiently, if not effectively or democratically, achieved by concentrating unquestioned power in one man (or woman) atop a joint legislative/executive/judicial bureaucracy. [Certain federal judges are obviously enamored of such an undemocratic, unaccountable form of government, as D.C. District Judge John Bates, just last week in the Al Awlaki case, again egregiously demonstrated.] A bureaucracy in which one man’s actions, including perhaps even his laws, and those of his military and spying subordinates, are kept secret from the people whose very lives he claims, without contradiction or check by another branch of government, to be benevolently “securing” from seen and unseen evil lurking around every “foreign and domestic” corner…

And yet, for some (very good) reason having to do with rebelling against just such an autocratic system, the Founders of this nation, when privileged to play a key role in establishing a government to better unify and represent a land mass and people a fraction of our size (and power) today, had uppermost in their minds that separating federal powers in their new government – ensuring, for example, that the President could not deploy the military or wage war at will, nor write the laws he was charged with faithfully and fairly enforcing, nor unilaterally imprison anyone without the check of the independent judiciary, except in accordance with universally-defined, wartime laws of humane detention – was of critical importance.

The reasons the Founders wisely feared concentrated federal power have in many ways come to dreadful fruition in modern America, for average people both at home and abroad, as Bruce Ackerman outlined recently while discussing his new book (The Decline and Fall of the American Republic) with Scott Horton of Harpers.

Excerpt from the book itself:

[B]oth major parties are in love with the presidency. [...] Although President Bush’s “war on terror” represents the greatest outbreak of presidential illegality since Watergate, we are not seeing anything like a post-Watergate response: no Congressional hearings probing the deeper causes of the crisis; no strong effort by constitutional conservatives of both parties to press forward with new landmark legislation safeguarding against future presidential abuses.

The presidency is a much more dangerous office today than when [Hannah] Arendt wrote her book [Crises of the Republic].Decline and Fall points to a series of developments since Nixon’s time that has transformed the modern presidency into a potential platform for charismatic extremism and bureaucratic lawlessness.

[...]

[I]t is the super-politicized White House Counsel and Office of Legal Counsel that are creating an unconstitutional system in need of correction. Article Three requires the president to take care that “the laws” be faithfully executed—the “laws,” not his own political program. To discharge this constitutional responsibility, he should set up an institutional framework that will reliably say “No” when his charismatic vision is at odds with established legal precedent. The existing super-politicized system of presidential lawyering doesn’t provide this assurance: instead of telling the president what the law is, his lawyers have overwhelming incentives to tell him what he wants to hear.

To his credit, Ackerman evidently does more than chronicle failure in his new book; he proposes some thoughtful, constructive solutions to the problems that confront us at the federal level, particularly within the Executive Branch, on which he focuses. It is equally imperative that the nation accurately identify and attempt to remedy the genuine harm that’s been done by the Parties and the presidency to the institution of Congress itself, or a return, any time soon, to at least a semi-respected, democratic, publicly-operated national legislature will remain unrealized.

The primary causes of the deplorable state of our Legislative Branch of government today (such as the corrupted, incumbent-favoring campaign finance system) are unfortunately in danger of being misdiagnosed or left untreated by members of the self-interested Parties that inflicted much of the damage in the first place. With regard to the still Democratic-majority Senate, for example, we continue to be misled and distracted by self-serving, even brazen, claims by incumbents who assert that the current scarcity of Senate (and House) debate means that even less public debate in future will solve the problem(s).

Those self-serving claims mislead by, for example, seeking to equate voluntary, politically-convenient Party practice as somehow mandatory behavior forced by the institution and rules of the Senate itself – an institution that seems to have few disinterested defenders today who are willing to speak for it rather than for Party – while leaving unmentioned, often to avoid angering power, the underlying cause(s) of the problem. Such self-serving claims, now regularly featured by partisan or misinformed members of the media, are clearly illustrated by another Ryan Grim post promoting Senator Tom Udall of New Mexico’s partisan (and family name-invested) mission to model the Senate on the House:

On the first day of the 112th Congress, [Tom] Udall said, he will rise and make a motion to establish rules for the session, making the argument that [every existing Senate rule expired with the 111th Congress, for the first time in U.S. Senate history... - pow wow] [...]

[...]

“We have a weakened legislative body. It’s in the interest of both Democrats and Republicans who want to get things done” to reform the rules, said Udall.

In that Love Letter to the Democratic Leadership posing as a news article, HuffingtonPost’s Grim (a good reporter, when he leaves the partisan blinders at home) leads readers to believe that a Democratic Senator (Jeff Merkley of Oregon), who cites the public’s unfamiliarity with Senate rules in the article, himself openly misstates those rules. In fact, the egregious misstatement is apparently Grim’s, not Merkley’s, although it’s hard to be sure. [I note that Grim never deigned to mention in his lengthy piece (nor Sam Stein in a subsequent article quoting experts who appeared in the same Senate Rules Committee hearings) the plea - made months after the "death bed" December, 2009 Robert Byrd vote that Grim's post melodramatically and misleadingly describes to Reid's advantage (though Reidvoluntarily chose the 1 a.m. voting hour that Grim decries) - that Senator Byrd movingly read to his colleagues in person in the Senate Rules Committee in May, 2010 in opposition to the efforts of Tom Udall to limit the right to debate in the Senate. But then, Ryan Grim has more than one article under his belt that presents (Democratic) Party spin as Senate rules reality, and I don't imagine that his biased, partisan outlook, and the misleading conclusions that he draws as a result, will soon change.]

As George Orwell (Eric Blair) perceptively explained about theself-interest of Party and power, when he wrote the satire1984in 1948:

The Party seeks power entirely for its own sake. [...] Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture.The object of power is power.

Turning to the rarely-discussed specifics of the operating procedures in Congress today, upon which I base my own assertions about the problems in Congress – grave problems exemplified by the ongoing, manifest failure of our Legislative Branch of government to play its essential role as sketched above by Louis Fisher – my observations about the House and Senate are as follows:

The House of Representatives

Most members of the House (and Senate) today, of both Parties, fear and loathe the accountability and exposure (for actions taken and untaken, and for personal competence, or lack thereof) that public debate in Congress brings. They are therefore for the most part grateful that quietly but steadily the Parties have worked to consolidate the power held by individual members – those privileged to speak for the American people – in Party leadership hands, so that members can, increasingly, painlessly shun (in the Senate) and almost completely abandon (in the House) public floor debate, and with it the thoughtful, democratic legislating that is founded upon such debate.

Generally, televised coverage of the House and Senate proceedings has reduced the spontaneity of debates and the willingness of members to debate with each other directly.Instead, members increasingly use prepared speeches together with visual aides such as charts, graphs and photographs to make a debating point to a television audience. Together [in the House] with the drastically increaseduse of special order resolutions from the Committee on Rules, which limit the amendment process and which restrict pro forma ['strike the last word'] amendments so that time may not be separately sought by opposing members, television has had a negative impact on the quality of debates and on the likelihood that debates may influence the votes.

As indicated above, the House, under Speaker Nancy Pelosi and her predecessors, has by now mostly eliminated genuine debate and amending on the House floor by the 435 federal Representatives of the American people – a result of the membership ceding its power to Party leadership through rules passed by lockstep Party-majority voting. Passage of such rules has lodged most House power today in the hands of the Speaker (if not the President, when of the same Party) and her Rules Committee.

House Speaker Nancy Pelosi, quoted in a 7/1/2010 Ryan Grim post, in which she appears to advocate that the Senate follow the House in ending the right to extended debate (aka “filibuster” reform):

“I can get a great deal accomplished from my members — we never lose — but they get discouraged to do big spending bills, unpaid for, unless there’s some thought that the Senate is going to do something… They don’t really want to be target practice for all the people saying ‘You’re a big spender, big spender, big spender,’ and nothing came from it,” she said.

To elaborate a bit about the House: Nothing important is brought to the House floor without a preordained outcome, and only the Speaker gets to decide which, if any, amendments will be offered on the floor (through the Party leadership-obeying, majority-stacked Rules Committee). [Provided, as noted above, that Calendar Wednesday rules are consistently dispensed with by unanimous consent, or, more formally, by a two-thirds majority.] Party loyalists may not know, or care, that their Representatives – even if one of the 435 in the body with membership in the majority Party – generally have no opportunity to offer amendments to improve legislation on the floor in the modern House. By no definition I know is that a good thing for the nation. Five minutes at most (but often just one) is instead allotted to a small minority of members, for no more than an hour or two altogether (whatever Pelosi decrees), on major bills that reach the floor through a Rules Committee special order resolution. Which is just enough time to spew a talking point or two toward the “other side of the aisle” before the gavel comes down on the Speaker-ordained (if private-caucus settled) outcome. End of “debate.” And that’s the model that some want the Senate to follow, apparently because they consider self-government to be too inefficient at “getting things done” to preserve.

Brian Lamb, C-SPAN, 9/28/2010:Would we be better off, as a country, if we didn’t have television in the House and Senate?

Charles W. Johnson:There’s no turning back now, Brian. I mean, my original, what I wrote there [quoted above] was strongly felt when television began, because I saw [House] members changing their styles and their candor. Now they’re changing their attitudes about opponents on issues because very often they’re personal and they don’t want to engage on their time in someone else’s attack upon them.

But the American people have to see that now because it’s the core, unfortunately, the core of our, one of the cores of our political operation. They have to see the charts and graphs, even though they realize this is not debate, because, they have to see what the House has become in order to properly judge it. So to just say there’d be no more television would not work, it wouldn’t fly with the American people. There’d be some – and with all the other electronics that are allowed on the floor – with cell phones and Blackberries, what have you – where members – and I’ve spoken against this – where members actually communicate outside with special interests. And we had a rule until recently, you know, that no electronic devices were allowed on the House floor. The Senate is almost as strict. But members – the modern members can’t live without an electronic way of communication. But what that does is, I think, give access to lobbyists and others who have electronic capability into the Chamber, where – the Chamber as far as Jefferson was concerned, at least, was a sanctuary for debate among members without direct outside influence.

Thus, to my mind, if John Boehner and his new Republican leadership team follow through, in more than name, on their little-discussed, but highly-commendable plans to (I hope) begin to genuinely re-democratize House proceedings, that alone may make Boehner’s tenure as Speaker of the new Republican House historically important, progressive, and of lasting benefit to the nation. [Though, for example, putting cameras in the House Rules Committee meeting room, as is already underway at the direction of Rep. Dreier, without changing the open rule-hostile practices of, or House Rules governing, the Speaker-beholden Rules Committee, would probably qualify as reform in name only. Greg Walden, the GOP transition committee chairman, for one, at least has his own recent, personal experience to share about the futility of trying to persuade that committee to allow amendments that the Speaker/President dislikes through to the floor for a hearing and a vote by his colleagues, asI noted here.]

Why is the People’s House in such disrepair and why has every recent Speaker called for its procedural makeover? Over the past three decades, each majority party has increasingly turned the thumbscrews on the minority party. In the 1970s, bills typically came to the floor with ample opportunity for amendment and debate by majority and minority party alike. In the most recent congresses, almost every major bill is considered under exceedingly restrictive [special order] rules, rarely allowing members of the minority to amend the majority’s handiwork. In today’s polarized Congress, it is the minority party that pays the steepest price under restrictive rules, as their policy views are seldom represented in the bills the majority seeks to protect on the House floor.

[...] It is inconceivable today that the majority party would allow an important bill to come to the House floor open to serious amendment by the minority party. Only when the majority thinks it has the votes to defeat an amendment is it likely to grant its proponents a roll call vote on the amendment.

[...] As seen in the figure below, the trend line for the use of restrictive rules climbs steadily over the past couple of decades…

But note the marked drop off in the use of restrictive rules with the arrival of Gingrich and the new Republican majority in 1995. The fall off in restrictive rules reflects Republicans’ effort to follow through on their campaign commitment to open up the legislative process on the floor. It is hard to know whether Republicans truly believed in the value of participation or whether they felt compelled politically to live up to their electoral promises. Probably both. Regardless, the party’s enthusiasm for full and open debate lasted just a short while. Soon thereafter, with shrunken majorities and rising partisanship, House Republicans reverted to the restrictive practices of their Democratic predecessors. Matters did not improve when Democrats regained control of the House. Although Speaker Pelosi pledged an open and fair House floor upon taking up the Speaker’s gavel in 2007, Democrats brought all of their “Six for ’06″ priority issues to the House floor under restrictive rules.

[Referencing admiringly the non-partisan approach (though a Party member) of the Speaker of the British House of Commons in his day-to-day role and selection of amendments, etc., Johnson added:]

[I]n comparison to the evolution of the [U.S. House] Speaker’s role – which has always been a hybrid role here, a combination of an institutional non-partisan presiding officer and administrator together with Party leader and Party fundraiser. Those latter two characteristics of the Speaker here have totally overcome the initial notion that the Speaker shall be above the fray. And I just – it’s difficult for a Speaker here in the United States now from time to time to play the institutional role when he or she needs to. So there’s much more of a delegation to people who are not so qualified to do those things.

“Every issue of national import should be debated by the people’s elected representatives in full public view,” [John Boehner] said [in January, 2010].

A call for more transparent government was part of the “Pledge to America” promoted by congressional Republicans in September [2010]. Boehner put particular importance on the installation of cameras in the hearing room of the powerful House Rules Committee, which was included in the House GOP Congressional Transparency Initiative that Boehner introduced.

PolitiFact Ohio, never willing to miss a chance to do a little House-keeping, made its own call to the Office of the Chief Administrative Officer, which is responsible for the operating infrastructure of Congress.

Dan Weiser, communications director for the chief administrative officer, said it’s true: Rules, Intelligence and Ethics are the only three committees lacking cameras in their main hearing rooms, of 25 committees in the House.

[...]

C-SPAN now uses the video feed provided by House-owned cameras for its cable telecasts and free online streaming.

Brian Lamb, C-SPAN’s founder and chief executive, requested the addition of “a few small robotically operated cameras in the House chamber,” and reminded Boehner of his support in January for C-SPAN’s request to televise health care negotiations.

“Currently,” Lamb wrote in a letter to Boehner, “House floor debates are not in full public view because private news media cameras are still not permitted in the House chamber. Rules established when the House installed its TV cameras in 1979 restrict congressional camera operators to head-on shots of members at the podium and committee tables, and they are prohibited from taking reaction shots or shots of the [empty... -pow wow] chamber, leaving viewers with a less-than-complete view of your debates.”

Republicans are running the transition committee out of a small Capitol conference room that the current Democratic majority gave to them Wednesday morning. The room is adorned with large posters displaying the Pledge to America, and a quote by former House Speaker Nicholas Longworth, who, like John Boehner, was a Republican from Ohio. Walden’s wife has been volunteering by answering phones.

They are currently reaching out to members they’d like to put on the transition committee, and they’ll ask them to come to Washington Monday for an evening session, and stay through Tuesday to get briefed on House rules and consider changes.

Among other items discussed will be changes to the House calendar, to give more unfettered time for committee hearings. [Greg] Walden said he is going to reach out to Rep. Mike Capuano (D-Mass.), who ran the Democrats’ 2006 transition, to see if he has anything he would have done differently if he could do it again.

The Senate

The Senate, meanwhile, under both Republican and Democratic majorities, has sharply reduced the practice (although at least, unlike the House, has so far preserved the option) of genuine floor debate and open amending by all Senators – most egregiously, perhaps, by allowing the majority Party leadership to unilaterally suspend and block Senate business at will while the Senate’s “in session,” with the use of unlimited “quorum calls” that don’t actually call the quorum (at the Majority Leader’s unseen bidding) and may only be lifted by unanimous consent. Leaving the Senate chamber – although it is still at least theoretically available for purposes of debate to every Senator basically at will – empty and unused most of every day that the Senate is “in session,” while the Party leadership makes deals in the backrooms, in lieu of public legislating by the representatives of our states.

“The Senate likes to think of itself as the world’s greatest deliberative body, but it is less deliberative than virtually any state legislature in the nation,” [Democratic Senator Jeff Merkley, "a veteran state legislator who was the speaker of Oregon's House before his election in 2008"] says [in a new article that unfortunately obscures Merkley's message by misstating Senate procedure(s)].

Since assuming control of the Senate, the Democratic majority has been engaging in what my friend the Majority Leader [Harry Reid] once called a “very bad practice.” And according to CRS [the Congressional Research Service], it has been engaging in it to an unprecedented extent. What I am talking about is the Majority repeatedly blocking senators in the Minority from offering amendments by filling the so-called “amendment tree.”

All Majority Leaders do it. But this Majority has done it to an unprecedented extent. Senator Frist did it 12 times in four years. By contrast, Senator Reid has done it more than twice as often—26 times—in a little over three years. In fact, the current Majority has blocked the Minority from offering amendments almost as often as the last five Majority Leaders combined.

[...]

True, there may be some votes you would rather not cast, but that’s nothing new. What is new is the unprecedented extent to which the Majority is avoiding having to vote on amendments. As my good friend the Majority Whip [Dick Durbin] likes to say: “If you don’t like fighting fires, then don’t become a fireman. And if you don’t like casting tough votes, then don’t run for the U.S. Senate.”

Democratic Majority Leader Harry Reid “filled the tree” again late last week, on Thursday, December 9, 2010 (right before he filed the cloture motion) on the Obama Backroom Tax-cut Deal, to prevent a single member of the Senate from publicly proposing a single amendment to change that deal/bill. Of course, this time Reid presumably did so with Republican Minority Leader Mitch McConnell’s warm appreciation and hearty approval…

Regular, daily, Senate order provides for (Constitutional) simple-majority passage of legislation. A regular, daily order which is only changed if and when 16 majority (Democratic, these days) Senators file a “cloture motion” [Harry Reid, on an almost-weekly basis, to the Presiding Officer: "I have a cloture motion at the desk"] – and, by the filing of that cloture motion, choose to replace regular simple-majority Senate order with Rule 22′s supermajority requirements, despite the absence of an ongoing filibuster.

Today marks the fifth hearing this committee has held on the filibuster, and I am told to expect a sixth hearing.

It is counterproductive to hold multiple hearings on filibusters – which is nothing more than the right to debate legislation – without understanding the wider context in which they occur. I am talking about the practice of filling the amendment tree.Mr. Chairman, it is time for this committee to hold a hearing specifically on that practice.It is appropriate in light of the multiple hearings we’ve had on measures that would curtail Minority rights without addressing clear abuses by the Majority.

This committee has examined multiple approaches to curtailing filibusters. Now, there is a proposal that threatens more than just minority rights, it threatens the very nature of the Senate. I am referring to the resolution introduced by the junior senator from New Mexico [Tom Udall] – a resolution that would declare Senate Rules unconstitutional. This, my colleagues, marks a new low.

The reckless “nuclear” or “constitutional” options being spun of late (this time by certain Democratic Party members and their fans), to reform the “filibuster,” essentially amountto violating Senate rules in order to “change” them without debate, with the aim of eventually empowering future Senate majorities to stifle debate at will, as the House majority Party (in the person of the Speaker) is now empowered to prevent floor debate there. In short, the primary motive of Democrats seeking to violate the rules of the Senate next year to “change” some of them – for, at most, two years at a time for every rule going forward – without debating those changes, seems to be to further hide the Senate’s actions from the public while preventing a minority from publicly complaining about it.

That conclusion follows from the fact that Senate rules may be changed any day of the session that the Senate decides to try to change them, by simple-majority vote, unless and until an actual filibuster manifests itself (in which case, either the filibuster must be waited out, delaying the simple-majority vote, or a cloture motion may be filed by the majority, which would need 67 votes to pass to bring the filibuster to an early close). Any successful rule change would then remain in effect indefinitely, until the Senate again decides to change the rule (rather than suddenly vaporizing at the end of the two-year term of the Congress that passed the rule change, along with every other rule, if Tom Udall gets his way).

The amount of misinformation that exists about this topic is appalling, and Senators themselves are some of the worst offenders in spreading it, or letting it be spread, unchallenged and uncorrected.

Finally, but importantly – as the perceived novelty of the Sanders effort Friday demonstrates, and although Tom Udall has yet to explain this to the nation in his “reform” campaign, or to publicly correct the widely-disseminated mistaken descriptions of the issue – the Senate has also, under both Republican and Democratic majorities,quietly agreed to cease practicing the parliamentary tactic of the filibusterwithout benefit of any rule change (meaning that the real filibuster may return at any time that the majority leader simply chooses, or is forced by his Party caucus, to weaken his grip on power in order to bring the real, debating filibuster back into existence), even as gullible partisans and deliberately-misleading members of the media loudly trumpet the increased use and abuse of “the filibuster” by the present Republican minority. [Proof of the ability of the majority Party to force a return of real, debating, Mr. Smith Goes to Washington-style filibusters by the minority, without any Senate rule changes, or rule violations, or any excessive strain on the majority,is here.]

A “cloture motion”(voluntarily and optionally filed by 16 members of the Senate majority, these days always in the absence of continuous floor debate) is not a “filibuster”(public debate conducted on the Senate floor by a Senateminority).

Any questions?

That, in a nutshell, is the inconvenient truth hiding behind the Democratic Party’s self-inflicted 60-vote “filibuster” epidemic in today’s Senate. A truth that carefully goes unmentioned by both Democrats and Republicans in the Senate, and even by some Congressional “experts” who make sure never to rock the Party boats. A self-inflicted epidemic that’s neatly illustrated by a Ryan Grim misstatement in his Democratic Leadership Love Letter mentioned above (perhaps inspired by Jeff Merkley’s statements, perhaps not).

[Senator Jeff] Merkley said that requiring the minority to do something — give a speech, show up, anything — in order to obstruct Senate business would alter the dynamic. Under current rules, it’s the obligation of the majority to affirmatively squash a filibuster rather than the minority to keep it going.

If the minority is made to stand up, said Merkley, “there is a price to be paid in terms of time and energy and visibility if you’re going to block” action in the Senate.

Oh, really, Ryan Grim? Which current Senate “rules” or rule is it, exactly, that forces the majority to conduct the minority’s filibuster (and why can’t you specify, by now, which rule(s) you’re referring to)??

In fact, as Senator Merkley must know (unless he too gullibly accepts whatever Harry Reid tells him), it’s actually only “under current, voluntary Senate practice” that a merely-threatened minority filibuster is treated as an actual filibuster by the Senate majority, which has nothing to do with the mandates of existing Senate rules.

Isn’t it rather easy for a Senate minority of 41+ topretend to be united in lock-step, unyielding opposition, prepared to take the floor to actually filibuster to delay a simple-majority Senate vote, if no one ever puts them to the test?? Harry Reid and his Democratic Senate majority have certainly done their utmost to make it exceedingly easy for Mitch McConnell and his Republican Senate minority to repeatedly bluff their way out of any need to actually take the Senate floor to make their case against a piece of legislation or a nomination in a physically-taxing manner.

Of course, it takes a lot of detail-crunching to be able to confidently make these assertions from the outside, but Robert Byrd, for one, was expert enough to make them, explicitly and implicitly, from the inside, a fact apparently unknown to Ryan Grim, if not to the Senators he quoted [link to Senator Byrd's February, 2010 Dear Colleague letter]. As outsiders attempting to set the record straight,selise and I finally took it upon ourselves to publicly crunch those details here in multiple FDL diaries, to demonstrate how the Senate rules and precedents in fact belie the non-stop Party spin that Ryan Grim and many others continue to disseminate; our detail-crunching culminated in this summary. In short, contrary to the conventional wisdom, a reform of mere Senate practice could indeed change the “dynamic” that Senator Merkley rightly condemns (though his points are mostly lost in Grim’s imprecise, Party-warped narrative), and thereby force a return of the real filibuster to the Senate, with the public debate and simple-majority rule that accompanies it.

In general, the Senate operates on the foundation of unlimited debate. This principle is fundamental to the right to filibuster. Senate rules do not specifically permit filibusters; rather, extended debate is possible in the absence of debate restrictions.

- Martin Gold, on Page 44 of his book Senate Procedure and Practice

To restate and summarize those filibuster facts:

The optional cloture motion – created by a Senate rule change during a special session in 1917, with pressure from President Woodrow Wilson, who was seeking to get the United States into the World War – slowly (more slowlythan the longest one-man filibuster in Senate history) brings actual, public floor debate to a close, provided that a supermajority of 60 Senators votes to pass it – or 67 for a Senate rule change filibuster (because of an earlier Senate compromise).

The filibuster, which is not an invention of any Senate Standing Rule, is a parliamentary debating tactic (because it’s essentially debate, the core of any legislature’s being, that’s carried to taxing physical extremes) that has been available since day one of the Senate, although it was apparently strengthened to some degree by an 1806 change in the Senate rules. Aside from the cloture motion method of overcoming filibusters, created in 1917 and slightly revised several times since, there have been no other alterations to the parliamentary tactic of filibustering in the entire history of the United States Senate. Through piracy, war with the British Empire, civil war, civil rights, world wars, cold war, “war on terror,” great depression, great recession, and financial panics alike.

Yet even as the Party-driven, voluntary, delay-promoting daily deployment in the modern Senate of the quorum call that isn’t a quorum call has escalated, there hasn’t been an actual filibuster in the United States Senate for almost twenty years,although the effort of Senator Sanders Friday probably came as close to the real thing as anything has for two decades(Senator Dodd in 2008 did his best to delay passage of the FISA Amendments Act, but used cloture delays – mixed with intermittent debate – to better advantage than Sanders has as yet, rather than straight, physically-taxing speaking alone).Aside, that is, from a Harry Reid stunt about five years ago, when he read his book aloud one day on the Senate floor – because Democrats wanted to score partisan political points in response to the Senate Republican majority’s threat under Bill Frist to do (less than) what some Democrats are now, in predictable turn, proposing to do to formally end the increasingly-unused right to extended debate in the Senate (which would, in part, further empower an already-imperious presidency).

The make-believe quorum call is so pivotal here because it is a device that prevents the Presiding Officer of the Senate from putting a question to a (simple-majority) vote of the members. That, in turn, is because, in the absence of an ongoing filibuster or other floor debate,the Presiding Officer is required by regular Senate rules and order – absent the make-believe quorum call – to put the pending question to a simple-majority vote of the Senate (or, if requested, to have the Clerk call a live quorum call, which does have limits on its deployment and actually comes to a conclusion – there’s either a simple-majority Constitutionally-required quorum, or else the Senate must force the attendance of Senators or adjourn), keeping Senate business proceeding unimpeded without the need to resort to unanimous consent to call up an amendment or to get a vote on an amendment when debate on it has ended.

The 1917 “cloture motion” rule (part of Senate Standing Rule 22) was designed, and intended, to be introduced in opposition to an ongoing “filibuster” which the majority can’t or won’t wait out in order to reach a simple-majority vote on confirming nominees, proceeding to legislation, or on final passage of legislation.

Once a Senate majority has the power to silence any member (while claiming, of course, that “the press of business” reluctantly forces them to do so), aren’t they going to use it? That’s basically how the Democratic leadership now abuses the use of the cloture motion (abuses to which most Democratic partisans are oblivious) – as a way to cut off debate and amending as soon as a measure hits the Senate floor, while pointing fingers at the Republican minority for “requiring” 60 votes to pass the bill (because they won’t all agree to waive the rules and regular order in order to speed a majority-written bill through the Senate without public debate or the opportunity to amend). Again, if you pay attention to how the House operates today, you can see how the power to shut off debate and amending is aggressively utilized by the majority Party at every opportunity.

If members of the media must continue to parrot the Parties’ misleading abuse of the term “filibuster” to describe a filibuster-blocking “cloture motion” that’s been filed by themajorityin the absence of a minority filibuster – apparently in response to mere public or private threats to filibuster – they ought at least to do us the favor of using another name to describe the second, alternate form of “filibuster” that they’ve conjured up out of thin air. Something like “no-debate minority filibuster” or “cloture-motion majority filibuster,” perhaps, although it’s beyond me why using the words that already accurately describe the actions taken should be a problem for an “objective” media.

It seems ominously clear to me that many federal legislators today (and sycophantic “experts” and “journalists” who curry favor with them) little value or appreciate the importance of open and democratic “parliamentary procedure” in the federal legislature in which they are privileged to serve. For such legislators (Harry Reid very much among them), might makes right, and backroom Party-run power plays are the name of the game – while the careful, deliberative process of good faith public debating and legislating in pursuit of good government, rather than power for its own sake, is scorned by them as a sucker’s game and an annoying waste of time.

I hope this diary underscores how dangerous to good government, and contemptuous of the consent of the governed, such Party-serving attitudes are, and that the diary’s details reinforce my contention that public, deliberative legislating by the people elected to legislate, is very much not a waste of time for those of us who prefer democratic self-government to monarchy in all but name. I trust I’m not the only American who’d like to see both the House and the Senate return to the art of genuine public debate, real (and thus rare) filibusters, and a legislative agenda that’s generated by self-directed, independent-thinking representatives of the American people, rather than by a handful of Party leaders in backroom consultations with the President and his appointees or campaign donor proxies.

I’d be interested – as, I hope, would be at least some incumbents and new Members of Congress – to read any ideas that commenters may have about ways to improve the operation of the House and/or Senate based on personal observations or experience – ways to improve the legislative and oversight roles of Congress, with the assumption that the desired substantive ends of favored legislation will follow an improvement in the health of the legislative process. Here, for example, is a list of 12 recommended changes in Congressional operations that POGO submitted to Members of Congress earlier this year. Would genuine public debate in Congress cause you to regularly pay more attention to (or to respect more) the daily actions of our Senators and Representatives (which you can watch unfiltered, even if the media doesn’t), and less to those of the President?

Feel free to vent in comments at the general state of our nation and government, and if you think I’m wrong about a position stated above, perhaps put Barry Eisler’s recent inspired, and inspiring, post “How to Argue” into practice – share your opinion, but round up some persuasive evidence or observations to go with it, that make it more than a ‘gut feeling,’ accurate as that may be. So, for example, if you feel a deep need to “abolish the Senate,” or to drastically limit the right to debate in the Senate, why do you feel that way? Because you’re sick of hearing Senators debate each other on the Senate floor? Because your preferred legislative ends have been thwarted, even without any actual filibustering in the Senate, so never mind the (hidden) means that thwarted those ends? Or because you have no idea what’s really going on in Congress behind its Party PR facade – given that most Congressional discussion now goes on behind the closed doors of the secretive Party caucuses – and want to lash out at that state of affairs, in any way you can?

One departing insider argued as follows – words I’ll use to close this diary – about the state of the Senate today, from an experienced perspective – experienced in both public debate, and in the ways of backroom Party deal-making that threatens to permanently replace public legislating – in his farewell speech to the Senate on November 30, 2010:

For more than 200 years, a uniquely American story has unfolded here in the Chamber of the United States Senate–a fascinating, inspiring, often tumultuous tale of conflict and compromise, reflecting the awesome potential of our still-young democracy and its occasional moments of agonizing frustration.

[...]

I am proud of the work I have done, but it is time for my story and that of this institution, which I cherish so much, to diverge. Thus, Mr. President, I rise to give some valedictory remarks as my service as a U.S. Senator from Connecticut comes to a close.

[...]

Most assuredly, I will miss the people of the Senate, but I will miss the work as well. Over the years, I have both witnessed and participated in some great debates in this Chamber, moments when statesmen of both parties gathered together in this Hall to weigh the great questions of our time. And while I wish there had been more of those moments, I will always remember the Senate debates on issues such as Central America, the Iraq war, campaign finance reform, securities litigation, health care, and, of course, financial reform.

[...]

For the past 30 years, I have sat at this very same desk occupied by my father during the 12 years he served in this Chamber. His courage, character, and conviction have been a constant reminder of what it means to be a U.S. Senator. [...]

[...] When this body is gaveled to order in January, nearly half of its Members will be in their first term. [...]

[...] Our electoral system is a mess. Powerful financial interests, free to throw money about with little transparency, have corrupted, in my view, the basic principles underlying our representative democracy. As a result, our political system at the Federal level is completely dysfunctional. Those who were elected to the Senate just a few weeks ago must already begin the unpleasant work of raising money for their reelection 6 years hence. Newly-elected Senators will learn that their every legislative maneuver, their every public utterance, and even some of their private deliberations will be fodder for a 24/7 political media industry that seems to favor speculation over analysis and conflict over consensus.

[...] So while the corridors of Congress are crowded with handheld video and cell phone cameras, there is a declining roll for newspaper, radio, and network journalists reporting the routine deliberations that are taking place in our subcommittee hearings. Case in point: Ten years ago, 11 or 12 reporters from Connecticut covered the delegation’s legislative activities. Today, there is only one doing the same work.

[....]

We 100 Senators are but temporary stewards of a unique American institution, founded upon universal principles. The Senate was designed to be different, not simply for the sake of variety but because the Framers believed the Senate could and should be the venue in which statesmen would lift America up to meet its unique challenges.

As a Senator from the State of Connecticut–and the longest serving one in its history–I take special pride in the role two Connecticut Yankees played in the establishment of this very body. It was Roger Sherman and Oliver Ellsworth, delegates from Connecticut to the Constitutional Convention in 1787, who proposed the idea of a bicameral national legislature. The Connecticut Compromise, as it came to be known, was designed to ensure that no matter which way the political winds blew or how hard the gusts, there would be a place–one place–for every voice to be heard.

The history of this young democracy, the Framers decided, should not be written solely in the hand of the political majority.In a nation founded in revolution against tyrannical rule which sought to crush dissent, there should be one institution that would always provide a space where dissent was valued and respected. E pluribus unum–out of many, one. And though we would act as one, and should, the Framers believed our political debate should always reflect that in our beliefs and aspirations, we are, in fact, many. In short, our Founders were concerned not only with what we legislated but, just as importantly, with how we legislated.

Welcome, again, readers and commenters. Your input and feedback, however major or minor, is invited. No question is too obvious, no confusion too petty to mention here. Thank you to all those who participated in the discussion in the earlier thread.

Our first formal working thread on this issue, started last Friday, is available here. There’s a lengthy introduction there, and a lot of detail in the comments, for anyone wondering what this is all about.

Since the comments closed on that thread sometime late Monday, and the Senate Parliamentarian’s office is scheduled to be open today, Tuesday, selise and I thought that another working thread would be in order, until we finally receive (we hope) the definitive answer(s) we’re looking for, and selise is ready to post her Seminal diary based on those answers.

Meanwhile, this was how selise’s first round with a staffer in the Senate Parliamentarian’s office went, on Friday afternoon (the office was apparently closed for four and a half days due to the record D.C. snowfalls):

I was able to connect with the Senate Parliamentarian’s office late yesterday afternoon although I had only a very short moment to talk, and I think so did the person I spoke with (understandable given the week DC has had).

[...]

The question I attempted to ask was, of course, about any Senate rules, starting with the two-speech rule, that could be used to put limits on an older-style, debate-based filibuster. There was a bit of confusion, because I apparently wasn’t clear enough that I wasn’t talking about a debate under cloture (alternatively, it may have been that the person I was talking with couldn’t imagine that possibility). When we, I hope but am not sure, got that bit cleared up, he said, regarding the two-speech rule he thought it was probably not workable because, if I understood correctly, it would be hard to enforce. I tried to ask why, but all he said was because of precedent. So of course I asked for a reference on that (which precedent?), but he didn’t have one for me. I ran out of time and I don’t think he was that interested in talking with me — unfortunate, but understandable.

[...]

At least I know now that the office should be open next week, and I’ll hope for a better conversation then. - selise, 2/13/10

I’ll try to briefly refocus below on where we are most in need of feedback from the Senate Parliamentarian, after the discussions in the first working thread’s comments.

Working backwards, I left a question hanging at the close of that thread that I think will need to be directly addressed by someone in the Senate Parliamentarian’s office:

Does it stand to reason, or is it logically the case, that actions considered by precedent to be Senate "business" for the purpose of calling another quorum (see list @ comment 65) – and for which the action of a Senator who has been recognized by the Presiding Officer is required – would likewise be considered (first) "speeches" under the two-speech rule – even if the Senator only executes such an action, without saying more – when that Senator is next recognized to speak on the pending question?

If that sounds like Greek to you, I’m sure you’re not alone. That question is part of an effort to, in effect, prove a negative: That, contrary to the conventional wisdom, there isn’t an easy way for a filibustering minority to avoid physically-taxing debate on the Senate floor, by shifting most of the burden of a real filibuster (as opposed to a non-filibuster cloture delay) to the majority.

The allegation that’s been widely made, once the obvious errors in the superficial conventional wisdom case (that a real filibuster is impossible today) are pointed out, is that there are multiple ways for a filibustering Senator (even during a real filibuster) to easily and painlessly avoid debating or speaking by, in particular, gaming the so-called "two-speech rule" that otherwise appears to limit him or her (as enforced by points of order by the majority) to only two speeches per legislative day (meaning, in effect, per filibuster) on the pending question (a bill, an amendment, certain motions, a conference report, a nomination).

A minority trying to shift much of the burden of the filibuster to the majority comes into conflict with the limits imposed by the two-speech rule in various ways.

For example, waiting until some qualifying (as defined by Senate precedent) Senate "business" – which doesn’t include "debate," or "discussion," or making of parliamentary inquiries, or suggesting the absence of a quorum – has been conducted, in the midst of their filibuster, is one requirement that a filibustering minority would need to repeatedly meet each time they wanted to force certain majority-inconveniencing votes or actions (like requesting a live quorum call, which requires 51 majority Senators to present themselves in the chamber to prevent a filibuster-aiding adjournment, or votes on motions to adjourn and motions to recess). But, because of the two-speech rule, if all or most of that qualifying Senate "business" (at least the "business" actions that directly involve a Senator, like offering amendments or making motions or unanimous consent requests) itself qualifies as a "speech" under the two-speech rule and its precedents – even if the Senator says no more than the absolute minimum needed to effect one of those "business" actions – the minority’s opportunities to inconvenience the majority, and make a mockery of both the "two-speech" and "intervening business" rules and precedents, would be drastically reduced (normal tactical moves of each side in a real filibuster excepted).

That’s what my question is getting at. The relative lack of Senate precedent directly addressing the issue leads me to believe that, if such credibility-risking actions were to be undertaken by a supposedly-principled minority forced to actually filibuster in the name of ‘needing more debate,’ they would quickly be reined in by new precedent, if not by existing, long-practiced Senate custom. The same lack of precedent guidance seems to indicate that such a Senate precedent-abusing practice, even if theoretically possible, has not been used in any significant way in real Senate filibusters since 1873.

So that’s one of the key questions we need answered or clarified by the Senate Parliamentarian.

We also need confirmation of the following flat impediment (whether or not this "business" action is itself considered a "speech") to one seemingly-available endrun – at least at a cursory glance, or in the absence of a majority actively contesting a real filibuster – of the two-speech rule, which seems to be evident from Senate rules and precedent:

Amendment, offering of: Can be blocked in multiple ways (to avoid providing the minority with serial opportunities to restart the "two-speech" clock), but most comprehensively by the Majority Leader "filling the (amendment, and maybe motion-to-recommit) tree" before the filibuster begins. [I've given lengthier explanations about this elsewhere, most recently here.]

This problem of ‘proving a negative’ as a result of the lack of proof offered by the conventional wisdom case that we’re challenging is itself part of a larger effort to officially rebut widespread claims that – as I wrote in the first working thread diary – the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today under the existing rules.

I yield the floor.

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”

This ‘working thread’ diary is in furtherance of what amounts to a direct challenge to, and hoped-for dismantling of, one pernicious aspect of the conventional wisdom that’s preached far and wide by the powerful in Washington. Specifically, the aspect of conventional wisdom that claims that the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today.

It’s a working thread where informed and engaged citizen selise hopes – five days after she first started to try to contact him/them in the midst of historic D.C. snowfalls – to finally hear the Senate Parliamentarian’s take on the current feasibility of restoring and forcing the classic real physical filibuster in the Senate. And to hopefully confirm whether or not it is indeed possible (as I’ve asserted) to do so without need to either violate the rules (the "nuclear" option in its various forms) or to change the rules as they presently exist. As part of the drafting process for her own pending Seminal diary that will report on what she’s learned from official sources about the reality of today’s Senate rules as they apply to the real filibuster.

Selise and I and others here at FDL have been actively debating this point for some weeks or months now, have noted the many, often-misleading, takes of others around the blogosphere, and, increasingly of late, tangential comments from Senators themselves, and now selise would like to write a clear and definitive account that even the conventional wisdom-peddlers might have to heed, and which people just tuning in for the first time will be able to grasp. [Altogether, no small task, that...]

Speaking for myself, my interest in a return to the real, physical filibuster is not necessarily in being able to speed (bad, or even good) legislation through the Senate. [Yes, counter-intuitively perhaps, that could very well be the effect of the return of the real filibuster, as compared to the use of the delay-enabling, supermajority-instigating Rule 22 cloture process that's constantly deployed by the majority to avoidmere threats by the minority to (supposedly) conduct physically-demanding filibusters.] It is also very much not my purpose to enable a simple majority to force its will on the minority at any and every opportunity, without consultation (as is basically, and regrettably, now done in the House), though that too could conceivably become easier to do.

Instead, what I, and I think selise, most want to demonstrate is that there is no present obstacle to the return of routine, simple-majority passage of legislation in the Senate today. No "60 votes" needed. No "67 votes" needed. No rules violation and thus no "nuclear" (in the Republican-majority era) or "Constitutional" (in the Democratic-majority era, as slightly modified) option needed. No rules change at all needed. No cloture motion or cloture vote necessary. Not even any reconciliation bill needed.

What’s needed instead? The courage and resolve of their convictions from majority proponents of legislation, a numerical simple-majority in favor of a proposal, and the will to join, on the Senate floor or off, or at least to endure, genuine public debate on sometimes politically-"tough" and emotionally-loaded subjects, which a real, physical filibuster, if forced to develop (by the withholding of cloture motions), might foster.

Because the alternative to exposing this truth, if it is a truth – the objective of selise’s upcoming diary is to try to ascertain its veracity – is to watch legislation continuing to be unnecessarily modified, and presidential nominations withdrawn, to please an unnecessary supermajority in the Senate – a supermajority that is not needed for the passage of legislation or nominations, so long as the majority is capable of waiting out any real, physical filibusters that may develop.

Ideally, of course [though probably not for rabid partisans allied, formally or informally, with those powerful politicians who control the Parties in Congress], that simple Senate majority first works with that minority, within the democratic confines of the Senate – in public, Democratic-majority committee meetings, and on the floor – without fearing genuine debate, or good faith input from that minority. So that reaching the stage of even a threatened filibuster, never mind a real one, becomes a rare occurrence in the Senate. And so that the segregation by Party recedes even as the Democratic majority maintains and wields the balance of power that the 2008 voters gave the Senate, when minds are being made up and votes are being cast in pre-markup discussions, and on amendments and bills and nominations and conference reports. That objective may (or may not) be furthered by restoring the real possibility that the majority may (force itself to) face the bracing tonic of a genuine, physical filibuster, conducted live on C-SPAN. But for the sake of the added, focused debate alone, it certainly seems worth a shot.

That’s a general summary of the many detailed comments, and a diary or two, that I’ve posted on this subject here, saying the same thing or something similar, in many different ways. So many detailed comments that I’ve started to lose track of which questions readers trying to understand this issue first have on the subject, or want answered, or find the most indecipherable. That’s where readers and commenters and selise’s pending diary come in: No question is too obvious, no confusion too petty to mention here. Lay it on us in the comments, and you will help us to understand what you need to understand, what we may need to further understand about the subject, and how best to shape a coherent explanation of the present state of affairs in the Senate. I’ve publicly asserted this case without being absolutely positive I’m right (since it’s a bit akin to proving a negative), and may thus be publicly proved wrong, but want to be proved wrong, sooner rather than later, if I am wrong.

Without further ado, I’ll post this diary and open the floor to selise to take it away as she sees fit.

In an effort to demonstrate that there is no lack of ideas or will available for the task of health care reform in Congress, if Members are left to their own devices, this diary documents all that was left ‘on the Congressional cutting room floor’ in favor of privately-negotiated, top-down, autocratic deals generated by, and deferring to, the President, his appointees, and the corporate benefactors of America’s two national political Parties.

Wholesale, unquestioning deference to leadership by sheep pens-full of our federal legislators, clustered and bleating together by Party, has been able to thwart the will of most of those (non-leadership) members of the United States Congress of both Parties with ideas of their own on health care reform, because of a Democratic Party leadership that has been allowed to prevent substantive productive debate and deliberation from taking place on the House and Senate floors to improve the legislation.

I contend that simple-majority passage of a genuine health care reform bill is still possible, even without reconciliation, provided that:

A. Democratic Party caucus members stand up for their individual prerogatives as elected representatives of the people, and for their Party platform, despite White House-generated Party leadership pressure to be "loyal" to the Party and its funders rather than to the American people, and

B. Democratic Party caucus members in the Senate insist that their Majority Leader cease his excessive use of the cloture motion, and default instead to real filibusters, while allowing both majority and minority members of the body genuine input into, and the ability to actually change (given simple-majority support), in public, the health reform legislation on the floor, if not in committee.

That same dynamic – otherwise known as "legislating" – would help (the country, if not the Party wars) on every other legislative proposal and Executive nomination yet to be considered by the 59-member Senate Democratic caucus, including policy matters unrelated to the budget, for which reconciliation is not an option. [Reconciliation itself originally being a way of taking Party politics out of "tough" votes to reduce the deficit, by getting around politically-motivated filibusters, real or threatened.]

Backstage bargains like these kept the [health reform] plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. "Let’s be honest," said Rahm Emanuel, Mr Obama’s chief of staff: "The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents." That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.

"An amendment [authored by Dennis Kucinich] which would have protected the rights of states to pursue single-payer health care was stripped from the [House] bill [by Speaker Pelosi] at the request of the Administration."

3.At this link are summary descriptions of the 200+ floor amendments filed on this major health reform bill by some of our 435 House Representatives – including many Representatives unable to otherwise influence the bill because they don’t sit on one of the three House committees that marked up the legislation [Education and Labor with its 49 members, Ways and Means with its 41 members, Energy and Commerce with its 59 members]. Yet every one of those amendments was summarily dismissed by the House Rules Committee, except for Stupak/Pitts and a doomed-to-fail Republican leadership "substitute" amendment, and thus never reached the floor of the House for debate or a vote by our Representatives – likely "at the request of the Administration," but certainly at the direction of the Speaker of the House who has been given iron-fisted control over the Rules Committee (and thus the ability to completely shut down meaningful floor debate and floor amendments, at her sole discretion) in and by the modern House. [A House where the sheep herd continues to dutifully obey commands from on-high, without complaint, while everyone busily points fingers at the Senate.]

[Ironically, the only genuine debate in the House on their "historic" health reform legislation, outside of the three committee markups of the legislation, took place in the small Rules Committee meeting room in the Capitol - where a tiny minority of members engaged each other for more than 10 hours while the Speaker was busy in backroom negotiations with Stupak/Pitts and others, and thus had not yet decided what decree to issue to the Rules Committee [with the sycophantic approval of tuned-out sheep like Earl Blumenauer who fielded a call from Speaker Pelosi that night, even as his Republican colleague from a huge district in eastern Oregon was doggedly making his case in person to the Rules Committee for relief for rural America, to no avail]. The Rules Committee members played their acting roles well, and pretended to listen – the Republican members even meaningfully engaged the witnesses and thus helped ignite genuine debate – to the impassioned arguments of those colleagues who had taken the trouble to come to plead their hopeless cause, as though the majority members were actually independent actors not in thrall to the Speaker. All they asked is that the committee vote to simply allow their amendment(s) to be heard on the House floor – to no avail, save for the few led by Stupak who bravely called the Speaker’s bluff, and were prepared to challenge the Party hierarchy. As soon as the last witness was finished speaking, staffers handed forward to the Chair the multipage blue document containing the Rule (Jim McGovern sat in for Louise Slaughter, who, along with every other Democratic female, had fled the scene), with copies for every member, and Rep. Hastings proceeded to read the Speaker’s decree that one, and only one, Democratic amendment on the health reform legislation would reach the House floor, whereupon the remaining Democrats present quickly rubberstamped the Speaker’s decree en masse without comment. Later that day the House dutifully proceeded to "debate" and pass both the Speaker’s Rule and the "historic" legislation in one day’s time.]

4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.

5. On December 8, 2009 alone, 78proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for "Improvement in Part D Medication Therapy Management (MTM) Programs"), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the "Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009"). Text of all 78 amendments is available here.

6. On December 18, 2009, SA 3275 filed by Senator Snowe (one of 11 amendments filed that day, this one to establish an "Accreditation Requirement for Rotary Wing Air Ambulance Services") was the last amendment proposed on the Reid substitute amendment (SA 2786) before Majority Leader Reid filed his secretly-negotiated (with …someone…) "Managers’ Amendment" SA 3276 on December 19, 2009 (text here), and then immediately filed cloture motions to end debate on his new amendment and the underlying amendment and shell bill, before "filling the tree" to block any possible amending of his newly-unveiled Managers’ Amendment from the floor.

7. Of the more than 400 floor amendments (SA 2787 – SA 3275+) offered on the Reid committee-merged substitute bill by United States Senators of both Parties, less than 30 were ever called up for debate or a vote on the Senate floor, including meaningless "Sense of the Senate" amendments, and all those called up needed 60-vote supermajorities to pass, by unanimous consent, so that less than 10 passed, including only one or two substantive amendments. [Though the unamendable backroom Reid Managers' Amendment filed on 12/19 included some and perhaps many of the never-debated Democratic amendments that had been filed on the bill (including at least one amendment of Dick Durbin's), but presumably none of the Republican amendments.]

"Filling the tree"? Good question. The "tree" in question is a reference to a chart graphic in the Senate Precedents Manual that demonstrates when and how to file amendments (first degree, second degree, etc.) on a measure.

Arlen Specter in 2008, speaking when he was still part of the minority Republican caucus:

U.S. Senator Arlen Specter (R-Pa.) spoke on the Senate floor Monday night regarding the use of the Senate procedure called "filling the tree" to derail progress on important pending legislation this session.

Filling the tree is a process whereby the Majority Leaders use their power to offer a sufficient number of amendments to "fill the tree" so that no other Senator can offer an amendment. Senator Reid has employed the practice 15 times this Congress on legislation, including the oil speculators bill currently pending, the Medicare bill, FAA reauthorization and climate change.

[Excerpting his floor speech:]

The institutions of the Senate are very important to this country. That is because this body has been called the world’s greatest deliberative body, because under the precedents, any Senator can offer any amendment to any bill at any time, virtually. There are some limitations, but that is the valid generalization. If you combine that with unlimited debate, this forum has been a place where ideas can be expressed, the public can hear them, the public can understand them, and momentous matters of public policy are decided by the Senate because of our ability to bring up these issues. Nobody can limit it. That has made America great. The Senate is a very important institution.

Now, regrettably, in the past 15 years–and it has been the fault of both Democrats and Republicans; and I have not hesitated, as the record shows, to criticize the Republican caucus. [...] In noting what has happened on this procedure of filling the tree–that is an arcane expression, but let me take a moment to explain it.

When a bill is filed, called up by the majority leader, the majority leader then has what is called primacy of recognition. If two Senators seek recognition, and the majority leader is one of them, he has the right to recognition first. So he then offers an amendment to the pending bill. Then he offers another amendment in the second degree. I won’t go on to detail the kinds of amendments, but the consequence is that no other Senator can offer any amendment. That is called filling the tree. Then, when the majority leader has done that, he moves for cloture. That is to cut off debate. Senator Reid did not invent this process. It had been used very sparingly until 1993, only 15 years ago. In one Congress, for example, the 101st Congress, 1989 to 1990, the Democratic majority leader, George Mitchell, did not use it at all. Then, in the session from 1993 to 1994, Senator Mitchell used it nine times. Then it got to be in vogue. Senator Lott used it nine times in the session from 1999 to 2000. Senator Frist then used it nine times in 2005 and 2006. Senator Reid has now used it 15 times, and it has had the consequence of precluding Senators from offering amendments [on the floor].

[...]

When I quoted Senator Reid about his denouncing the filling of the tree, his comment was that I had supported Senator Frist, the majority leader, and it is not true. I did not support him on that. I think Senator Reid was exactly right when he objected to the procedure to foreclose amendments by saying that the filling of the tree "is a very bad practice." These are Senator Reid’s words:

It runs against the basic nature of the Senate. The hallmark of the Senate is free speech and open debate.

Senator Christopher Dodd, Democrat of Connecticut, had this to say on the subject on May 11 of 2006:

….. to basically lock out any amendments that might be offered to this proposal runs contrary to the very essence of this body. ….. when the amendment tree has been entirely filled, then obviously we are dealing with a process that ought not to be. ….. the Senate ought to be a place where we can offer amendments, have healthy debate over a reasonable time, and then come to closure on the subject matter.

Majority Leader Reid has managed to set new records for the use of this deplorably-undemocratic practice even as he’s set records in the deployment of cloture motions (in the absence of actual filibusters), and made misleading public claims that shutting down Senate floor debate and amending is not his preference.

As I noted, Reid most recently "filled the tree" to silence the will of the Senate on Saturday, December 19, 2009, when he filed his Managers’ Amendment [SA 3276, text here] to the Senate health care legislation contained in his earlier merged substitute amendment SA 2786 (amending H.R. 3590). The Republicans had the Senate Clerks read the Managers’ Amendment aloud, following which Majority Leader Reid immediately filed three cloture motions – on SA 3276, then SA 2786, then H.R. 3590 (two of which were scheduled for votes by Reid at 1 a.m. in the morning) – and then Reid immediately filed and called up these subsequent second-degree amendments and motions:

SA 3277 [to SA 3276]:

At the end of the amendment, add the following:
The provisions of this Act shall become effective 5 days after enactment.

SA 3278:

At the end of the language proposed to be stricken [from H.R. 3590 by SA 2786], insert the following:
This section shall become effective 4 days after enactment.

SA 3279 [to SA 3278]:

In the amendment, strike "4" and insert "3".

Mr. REID. Mr. President, I have at the desk a motion to commit the bill with instructions.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Nevada [Mr. Reid] moves to commit the bill to the Finance Committee with instructions to report back with the following amendment numbered 3280.

The amendment is as follows:

SA 3280 [Instructions to a Motion to Commit]:

At the end [of H.R. 3590], insert the following:
The provisions of this Act shall become effective 2 days after enactment.

Mr. REID. Mr. President, I have an amendment to those instructions.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Nevada [Mr. REID] proposes an amendment numbered 3281 to the instructions of the motion to commit.

The amendment is as follows:

SA 3281 [to SA 3280]:

Strike "2 days" and insert "1 day".

SA 3282 [to SA 3281]:

Strike "1 day" and insert "immediately".

There you have it: "Filling the tree" in action last month at the direction of the Democratic Majority Leader, as Senator Coburn immediately clarified with the Presiding Officer:

Mr. COBURN. Mr. President, reserving the right to object, and I do not intend to object [to an unrelated order-of-speaking request], but I want to make a parliamentary inquiry prior to us doing that. And the inquiry is this: Based on the second-degree amendments just filed by the majority leader, as well as the elimination of their language, is it, in fact, the effect that no other amendments will be allowed on this bill?

The PRESIDING OFFICER. There are no available amendment slots at this time.

Mr. COBURN. Further in my parliamentary inquiry, if there were amendments available, could they be filed on this bill?

Mr. REID. I am sorry, I could not hear my friend.

Mr. COBURN. If, in fact, amendments were available, could amendments be filed to this bill and made pending?

I will restate my inquiry to the Chair. Is it, in fact, a fact that because of the filling of the tree by the majority leader, the opportunity to amend the bill before us will be limited?

The PRESIDING OFFICER. The Senator is correct.

The next day, Sunday, December 20, 2009, here’s the Democratic Majority Whip, Senator Dick Durbin, speaking from the floor to the American people:

Senator Coburn of Oklahoma filed 212 amendments during the HELP Committee markup. He offered 38 amendments to the bill. Nineteen of his amendments–half of them–were agreed to. Of those that were offered, 15 were not agreed to–all by rollcall vote. So 13 amendments offered by the Senator from Oklahoma were included in the bill that is before us today.

He has questioned whether the current procedure gives him an opportunity to offer amendments. The fact is, we are now on our 21st day of considering health care reform. Exactly 4 [floor] amendments have been offered by the Republican side of the aisle, 4 substantive amendments to change provisions in this bill of 2,000 pages–in 21 days, 4 amendments. They offered six motions to stop the debate, send the bill back to committee. They were generic motions. They did not ask for specific changes. They just take on an issue in the bill and say: Send it back to the committee and tell them to solve this problem and then bring it back to the floor at a later time. Well, that is kind of a procedural and, if I might say, political statement more than a substantive statement about a provision in the bill.

Fortunately, at least some members of the Senate can count, and aren’t as invested in selling this particular incarnation of publicly-underwritten corporate profit insurance to the American people as Dick Durbin is, and has relentlessly been, on behalf of his protege, and now master, Barack Obama:

Mr. KYL. [...] A final point on this. I have to say, the majority leader dictates the schedule of the Senate. All Senators are pretty much equal, but the majority leader has two things he can do and only he can do. He has the right of first recognition, and he has the right to set the schedule. By the schedule, I mean when he files a cloture motion, which is what brings this bill to the floor or this amendment to the floor [for a vote despite objection(s)]. When he files the cloture motion, that is what determines when the vote will be. He determines when to bring the Senate back in session. Under the rules, an hour after he brings us back in session, the cloture motion ripens and we have a vote.

He can set that time at any time. He can say tomorrow morning, at 9 a.m., the Senate will come back in session and we will vote at 10 a.m. The leader could do that. That is his right, and he is the only one who has the right to do that. But instead, he says we will come in at 1 minute past midnight tonight. Therefore, the vote will be 1 minute past 1 a.m. tomorrow morning. It is his right to do that.

We didn’t do that; he did that. He is the only one who has the right to set that schedule. If he wanted to set a schedule that was a little more convenient for all the Members–including our dear friend, the Senator from West Virginia, who is ill and indeed does have to get out of a bed to come in a wheelchair to this Chamber–the majority leader has it within his power to say we will do it at a more convenient time.

[...]

I guess I am going to conclude by saying I don’t believe this bill can be sold on its merits, and I think that is another reason why we have to hurry up and do it–before the public figures out what is in it. [...] That is why the majority of Americans want us to start over and address the problems on a step-by-step basis.

I was amused by my counterpart, the Democratic whip, saying Republicans have only offered four amendments. I think it was seven but say it is four. Guess who determines how many amendments we get to offer? The majority leader. He sets that schedule as well. He says now it is our turn to offer an amendment. Then it is your turn. The way he managed the schedule, we only got to file either four or seven amendments. We have 200 amendments pending [filed, but never called up for debate]. We would love to get as many of these pending and voted on as possible. Believe me, it is not Republicans who don’t want to vote on our amendments. The majority leader, again, has set the schedule.

This is why we oppose the bill. It is why we don’t like the process. We respect what our constituents are telling us. We believe this bill will be bad for them, and it will be bad for our country. Our Democratic colleagues have a different position. Neither their position nor ours is malignant, nor should they be expressed vindictively.

Mr. GRASSLEY. We have been hearing repeatedly from the majority whip from Illinois that the Republican side has offered only four amendments. I found this to be rather astonishing. The majority whip should know, because they are filed at the desk, that Republicans have put forth 214 [floor] amendments. In addition to striking some of the bad ideas in the Reid bill, these amendments also contain Republican proposals that are improvements over the Reid bill. But in this rush to get it done, the majority has decided they don’t want to consider any more of the 440 [Democratic and Republican floor] amendments filed at the desk.

Let’s be clear. We keep them so people can have access to them anytime they want to, the 440 amendments that have been filed, that we are accused of not offering any suggestions or improvements. Right here in these three binders, any one of the amendments you want, it is there.

Since this happens to be the case, I would like to take them up on their interest in considering additional amendments. The majority leader and my friend, the Senator from Montana, have both said they want this bill to fill the doughnut hole in the Medicare Part D Program. I share my colleagues’ desire to provide even more protection than seniors get under Medicare. I filed an amendment that is in this binder, amendment No. 3182, that would use the savings from medical liability reform, which happens to be about the second or third thing that always comes up at my town meetings that the people in this country feel we ought to be working on if we are going to make real the word "reform." It would put that $50 billion into savings toward eliminating the doughnut hole. The amendment puts the needs of 27 million seniors ahead of the needs of trial lawyers. I can’t speak for my colleagues, but that seems like a pretty easy decision.

To my good friend from Montana, I only have one unanimous consent request. I ask unanimous consent to set aside the pending amendment in order to offer amendment No. 3182, which is at the desk.

The PRESIDING OFFICER. Is there objection?

Mr. BAUCUS. Mr. President, reserving the right to object, the doughnut hole will be filled. I have made that promise. Senator Reid has made that promise. The White House made that promise. When the bill is presented on the President’s desk, the doughnut hole will be filled but not in the way suggested by my friend from Iowa. He is one of my best friends in the Senate, and it is with regret that I must object.

The PRESIDING OFFICER. Objection is heard.

There’s actually a parallel between the unseen hundreds of amendments (and thus the unseen genuine debate and legislating) that Party deference to the White House kept off the House and Senate floors on health care reform, and the unseen real filibuster of days gone by that has been ‘disappeared’ by succeeding Majority Leaders for convenience’s sake.

Question: If bothreal filibusters and Rule 22‘s cloture motion option could co-exist from 1917 until 1975, as they unquestioningly did – right through Mr. Smith Goes to Washington’s fictional, and Strom Thurmond’s actual, filibuster – why couldn’t they since 1975 (when the cloture motion vote threshold was merely lowered from 67 to 60)?

Answer: They could and can still co-exist, I contend, provided only that the Senate majority wants them to (because no one makes a Majority Leader file a cloture motion with its 60-vote supermajority, in lieu of forcing a filibuster so as to maintain simple-majority passage of legislation).

In case there are a few U.S. Senators not off cavorting in Davos, who need a reminder that their struggles today are not unique, here’s a sampling of the sort of principled resistance that led another President, eager to strut the world stage, to force his Senate allies to enact the first cloture rule in 1917, as related by one member of that principled 1917 opposition, speaking on the Senate floor in 1938 (transcribed from the Congressional Record):

Senator George Norris of Nebraska (Progressive Republican, then Independent in 1936), speaking April 27, 1938:

I suppose no living man can tell with any accuracy just what would have happened [if we had stayed out of the World War]. We are all entitled to our guess.

It seems to me that, if we had stayed out of the war, we in America, the Federal Government should have been able to step in at a time when there was no victory in sight for either side, and help to make a peace which would have been an honorable one, instead of the dishonorable peace which was made by the Treaty of Versailles. That, of course, is conjecture.

[...]

We should not have had more than 100,000 graves of soldiers killed in the war, the cream of American citizenship.

We should not have had thousands of our citizens sleeping the eternal sleep under the poppies of France.

[...]

We should not have had the vast accumulation we now have of the wealth of the country, the lifeblood of the country, within the hands of a comparatively few men.

[...]

I cannot think of a single thing we got out of the World War that was good, or that helped civilization. Our participation in the war tied our hands so that we were unable to help make a peace which would have been honorable, upon which the warring nations could have based a treaty of justice and fairness.

[...]

Mr. President, whether or not anybody but myself believes the statement, I venture the assertion that it was the people of this country who went wild; that Congress would not have declared war if it had not been for the people back home, moved by propaganda spread all over the land, much of it false, nearly all of it false and unfounded, much of it exaggeration; that from home came the demand that we go into the war.

In the contest which took place here less than 2 months before we declared war, when the proposal to arm the ships of the merchant marine was killed by a filibuster, I know that while the filibuster was going on word was brought in secret to the filibusterers, from those who took part in trying to pass the bill, encouraging the filibusterers to keep on. I myself had something to do with the managment of the filibuster, and with keeping Senators here during that long, weary night, ready to take the floor at a moment’s notice. I was visited by Members who were opposed to the position we were taking who secretly said to me, "For God’s sake, do not stop the filibuster." When Senators came to me secretly urging that the filibuster be continued, I told them that what we needed was Senators to speak and occupy the floor. I said that it did not make any difference which side of the question they were on; if they would take up the time of the Senate they would help the filibuster; and at least two Members of this body, of as high standing as any other Members of the Senate at that time, assisted in the filibuster by making speeches on the other side. They came to me and said, "I cannot withstand the pressure from home. It means political death, it means political extermination if I do not continue in my present course." Some of them admitted that they thought they could at last see that they were wrong, but they said they could not withstand the awful propaganda which went over the country urging them to push us into the fight.

It was not Members of Congress who were wholly to blame for that step, regrettable as I think it was. It was the men and the women at home who were pushing them on, who were threatening them with destruction if they did not vote right on the matter. That is one of the reasons why we went into the war; and I have enumerated some of the things we have that we would not have had if we had stayed out.

I believe there is greater cause now for building a large navy than there was then; there is more reason now why there should be additional preparedness than there was then, because there are some outlaw nations in the world who respect nothing on earth but power. They have no respect for honor. They have no respect for their word. They do not hesitate to go into war if they are not afraid of meeting opposition which they cannot overcome. [Ring a bell at all, today, somewhere near a mirror, America...?]

[...]

There is a difference of opinion as to whether we would gain by building larger battleships, for we must take into consideration the ability of an enemy to drop bombs upon battleships from the air. I do not know that that question is determined; I do not believe it is; there is some doubt about it; but it may be that if we build battleships of 45,000 tons, we will find, by the time they are completed, that they are useless in combat against an enemy discharging bombs from the air and flying so high that they cannot be reached with the present antiaircraft guns on naval ships.

[...]

For one battleship of 45,000 tons costing $100,000,000 we can build a great fleet of airplanes.

Accurate predictions before both World Wars by Nebraska’s principled Senator Norris, it seems, looking back, and yet all President Wilson wanted to hear was that the U.S. was entering the World War, and later that the first cloture motion would be filed to force the Senate to vote on adopting his benighted Treaty of Versailles.

Those echoes from the actions of one man who impatiently tried to unilaterally control both the Executive and Legislative Branches of government on a matter of vital national import are not mere coincidence. They’re a stark warning to us all.

On December 30, 2009, C-SPAN’s Chairman and CEO Brian Lamb made the following written offer to House Speaker Nancy Pelosi, House Minority Leader John Boehner, Senate Majority Leader Harry Reid, and Senate Minority Leader Mitch McConnell:

The C-SPAN networks will commit the necessary resources to covering all of these [health reform bill House/Senate] sessions ["all important negotiations, including any conference committee meetings"] LIVE and in their entirety.

[...]

Now that the process moves to the critical stage of [conferencing or merging bills] between the two Chambers, we respectfully request that you allow the public full access, through television, to legislation that will affect the lives of every single American.

Multiple national outlets are reporting today on Lamb’s offer, five days after it was made, and a day after anonymous leaks from Congressional staff (and original FDL reporting about on-the-record remarks by the powerful Henry Waxman) asserted that no formal conference would be held between the House and Senate, or by appointed, accountable conferees, on this major piece of legislative policy, that’s in dramatically different form after passage by the House and Senate.

Is there a chance, at long last, to get the "mainstream" national media to focus on the paucity of, and maybe even to promote, open, democratic process in our House and Senate, thanks to C-SPAN’s extremely-helpful and timely offer? Lamb’s offer could be a game-changer, on multiple fronts, depending on how it is covered, how it is responded to, and how that response is then queried by media reporters and bloggers. [That focus and game-changing may have already begun, based on the defensive responses - including the claim, contrary to Waxman's Sunday comments, that no decision has yet been made about bypassing a formal conference - by the House democratic leadership in a press conference today at which they were asked about the C-SPAN letter.]

I noted in a comment here yesterday some of the differences between a formal conference committee between House and Senate, which includes both Democrats and Republicans (a process that, unfortunately, under both Parties, has been increasingly transformed into nothing but a single public rubberstamp for private deals dictated by Party, often at the behest of the White House), and the planned non-conference, wholly-private, Party-directed, off-the-record negotiation, which – not for the first time – removes the voices of every American represented by a Republican Member of Congress from the negotiation process. See also the formal Senate rules for (the bypassed-in-spirit, if not letter) conference committees, their "open meetings" and conference reports, here.

Now if we could just get some informed national media coverage about the Senate rules – which, in my opinion, enable a real filibuster to be forced into action and faced down to a simple-majority conclusionwithout the painless, time-wasting, 60-vote-supermajority of Rule 22′s cloture motions – we might start getting somewhere.

The long-gone real filibuster

I’ve read accounts of why the Majority Leader "can’t" force (in order to overcome, without resort to 60 votes on a cloture motion) actual filibusters in the modern Senate here (before the Democratic caucus had 60 votes), here and here. But all of those accounts have at least minor errors in them that I can see, and I believe that their assertions can be rebutted by reference to the actual Senate rules and precedents (as opposed to what’s simply convenient practice used by modern Majority Leaders, including Mike Mansfield’s "two-track" filibuster). Provided that people understand that – like Steny Hoyer, I assume, in his February, 2009 comments about the filibuster in relation to the stimulus package – I’m referring to forcing filibusters without resort to the convenience of invoking a cloture motion, and thus Rule 22′s many painless delaying tactics, to foreclose it.

I’m repeating below some information I posted yesterday, regarding the overlooked/ignored feasibility of forcing the filibuster when one is merely being threatened on a major piece of legislation, partly to try to highlight some specific questions that need asking of the powers that be, quoting pertinent excerpts from a 2003 Congressional Research Service report on the subject.

First, excerpting what I surmise to be (aside from his and his Party’s fear of genuine debate on a lousy piece of legislation) one of the real obstacles that keeps Harry Reid from forcing a filibuster – the likelihood of some inconvenience to the majority, proponent Senators that support the filibustered legislation:

Today, all-night sessions are very unusual. The Senate may not even convene earlier or remain in session later when a filibuster is in progress than it does on other days. One reason may be that filibusters are not the extraordinary and unusual occurrences that they once were. Another may be that Senators are less willing to endure the inconvenience and discomfort of prolonged sessions.

The latter point is important because late-night or all-night sessions put as much or more of a burden on [more of] the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. If, late in the evening or in the middle of the night, a Senator suggests the absence of a quorum and a quorum does not appear, the Senate must adjourn or at least suspend its proceedings until a quorum is established. This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.

If someone can get recognition in order to recess the Senate for the night, however, such late night sessions aren’t a necessary feature.

During a filibuster, however, the clerk may be directed to call the roll more rapidly [than during the fake quorum calls of the modern idling, empty Senate chamber], as if a [real quorum] rollcall vote were in progress. Doing so reduces the time that the quorum call consumes, but it also creates the real possibility that the quorum call may demonstrate that a [physical, Constitutionally-mandated] quorum [consisting of a majority of Senators] in fact is not present.In that case, the Senate has only two options: to adjourn, or to take steps necessary to secure the presence of enough absent Senators to create a quorum. Typically, the majority leader or the majority floor manager opts for the latter course, and makes a motion that the sergeant at arms secure the attendance of absent Senators, and then asks for a rollcall vote on that motion. Senators who did not respond to the quorum call are likely to come to the floor for the rollcall vote on this motion. Almost always, therefore, the vote establishes that a quorum is present, so the Senate can resume its business without the sergeant at arms actually having to execute the Senate’s directive.

[...]

When Senators suggest the absence of a quorum, however, they lose the floor. Also, "[i]t is not in order for a Senator to demand a quorum call if no business has intervened since the last call [further "debate" or speeches do not qualify as such business]; business must intervene before a second quorum call or between calls if the question is raised or a point of order made."7 These restrictions limit the extent to which quorum calls may be used as [a] means of conducting filibusters.

Note that the Senate, during the conduct of an actual filibuster, will in fact not want to adjourn, because recessing (instead, unlike adjourning) continues the "legislative day" into the next calendar day, thereby helping to impose the limit on any particular filibustering Senator of two speeches on any particular matter:

Rule XIX places no limit on the length of individual speeches or on the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision that "no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate." This provision, commonly called the "two-speech rule," limits each Senator to making two speeches per day, however long each speech may be, on each debatable question that the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.

The "day" during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.

So the Senate would actually have to be a Senate again for a few days – with members physically present (or nearby) for hours or days, prepared at any time to respond to their names (in sufficient number to make a majority of 51, for a Constitutional quorum) in order to avoid an early adjournment that would aid the filibustering Senator’s cause.

Is there any labor more burdensome than that for the majority Party, which would or should lead it to avoid an actual filibuster at all cost, thereby establishing a new default Senate supermajority of 60 for the passage of legislation? Simply (supposedly) to avoid watching Ben Nelson or Blanche Lincoln, who rarely make appearances on the Senate floor, or Joe Lieberman, or a sequence of Republicans, speak for hours, on their feet, about their opposition to a bill in a droning monologue, without pause? Until their two speeches each are used up, and they no longer have the right of recognition to debate the question? Not that I’m aware of.

I contend that it simply takes the courage of principled conviction, equally by the proponents as by the opponents of important legislation, to stare down and engage an actual filibuster until a measure can proceed to an actual simple-majority up-or-down vote – consuming, in the process, quite possibly considerably less time than all the painless Rule 22 cloture-motion-initiated delays of the super-majority 60-vote response to merely threatened filibusters in the modern, make-believe Senate.

Once the Senate is debating a piece of legislation, when debate is finished (all Senators wishing to speak either having spoken, or having used up their alloted two speeches with a filibuster) the Presiding Officer puts the simple-majority question to an up-or-down vote [Page 2], no 60-vote majority needed.

Only testing the resolve of the purported opponents will ever demonstrate whether or not Republicans (plus assorted Democrats) in fact have the staying power to really drag out proceedings more than a week or two with a genuine filibuster to block a simple-majority vote – which the painless cloture motion process already allows them to do (though by both imposing a de facto 60-vote supermajority to pass legislation and by allowing other Senate business to get in around the edges during that time). Democrats like Ben Nelson, or Evan Bayh, or Mary Landrieu, I’m confident, will be nowhere in sight if a real filibuster is forced upon their empty negotiating threats.

I welcome contrary takes on the rules and precedents of the Senate that would realistically make a traditional filibuster impossible today, since this issue has been confused to such a great degree – deliberately so, in my opinion, by those in-the-know in the Senate – despite its significant potential impact on the future of the legislative process in both the Senate and the House. Any changes to the present 60-vote cloture rule will require a two-thirds vote [Page CRS-10] of Senators present and voting (with at least a quorum present, or a maximum of 67), as agreed when the cloture threshold was lowered to 60 in 1975. Note too that, until last year, for only two years since 1975 (when the cloture threshold was lowered from 67 to 60) has any Party in the Senate had 60 or more votes in its caucus, and thus the ability to steamroll over the minority at will on cloture votes, as the Democrats are now in the process of doing on the health "reform" legislation.

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